USDC Cr. No. 84-3552

     Plaintiff Pro Se    
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al     


On December 3, 1986 Government counsel filed, and served by mail, Federal Defendants' Opposition to Plaintiffs' Appeal of the Magistrate's October 8, 1986 Order. Ostensibly counsel filed this Opposition because this Court's "November 7, 1986 Order...stated that plaintiff's appeal was being taken under advisement."

In an effort to distill this matter to its essence, highlight both the parameters of this controversy (compare page 2 of Federal Defendants' Opposition), and the necessity for this Court to modify the Magistrate's Order so that there might be a fair hearing of the complaint, plaintiffs hereby incorporate by reference the Memorandum in Support of their Motion for Summary Judgment, filed September 22, 1986, and reiterate briefly the essence of the Complaint and issues which plaintiffs seek to set before the Court:

"This action seeks declaratory and injunctive relief against the manner in which the Government (implemented) or enforces against plaintiff the amendments to 36 CFR Sections 50.27 ... 36 CFR 50.19(e)(9)(10) (*and 36 CFR 50.19(e)(11)(12)) ("the regulations") issued by defendant Watt and official Arnett on June 4, 1982 ... June 17, l983 (*and March 5, 1986) respectively, and enforced by all defendants. Plaintiff has been arrested nineteen (19) times under color of 36 CFR 50.27 (prior to June 4, 1982, known as "50.5") and 36 CFR 50.19, and four (4) times under color of District of Columbia Code regulations, with the intent to restrict his rights to demonstrate on the public sidewalk in front of the White House. By (implementing) and/or enforcing the regulations and arresting plaintiff, defendants have violated plaintiff's First, Fourth, Fifth, ... Ninth (and Fourteenth) Amendment rights, 42 USC Sections 1983 and 1985(3), ... the Administrative Procedure Act (and the Universal Declaration of Human Rights)." (Complaint para. 18 [*parentheses added from Amended Complaint, filed October 19, 1986].)

"The Complaint contains numerous ... allegations of police misconduct, and plaintiff further claims that those acts were the product of a conspiracy pursued by federal and local officials....

"Plaintiff's Complaint states a substantial federal claim. The fact that the constitutionality of the DOI regulations is well-settled does not prevent the plaintiff from claiming ... that defendants have violated his constitutional rights in the course of enforcing the regulations...." (Memorandum of this Court, June 3, 1985.)

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. (The) Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right..." (Gunther Constitutional Law, University Casebook Series, Tenth Edition, pages 4 and 5, citing Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803).

"The Secretary ... cannot by his regulations alter or amend a law. All he can do is to regulate the mode of carrying into effect what Congress has enacted." (Morill v. Jones, 106 U.S. 467 [1882]; see also, Opposition to Federal Defendants' (Second) Motion to Dismiss, p. 23.)

"In the circumstances existing during the relevant time here a strong argument could have been made that a regulation (promulgated under a conspiracy with the intent of) banning all (effective methods of expression open to plaintiffs, individuals, or groups of 25 or less, in the Park)* would have been unconstitutional." (ERA v. Clark, U.S. App. 84-5283, Opinion filed October 26, 1983, at 16 [*parentheses added from Opposition to Federal Defendants' (First) Motion to Dismiss, filed March __, 1985].)

"In light of these facts, plaintiffs' claim that a memo from Secretary Watt, and subsequent contacts between (defendant) Robbins, a principle drafter of the regulations, and the Secretary and the White House take on added significance.... (A) memo from Secretary ... Watt requested a 'briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue. My intention is to prohibit such activities and require that they take place on the Ellipse.'...

"When (defendant) Robbins spoke to Secretary Watt about development of the regulation in March of 1983 (just several days prior to Thomas' arrest by defendant Canfield), the Secretary told Mr. Robbins to 'keep up the good work.' There was also contact with the White House counsel of the status of the regulations. Additionally plaintiffs urge that the key fact that both versions of the regulations just happened to proscribe all of the plaintiffs' then current activities on the sidewalk cannot be regarded as mere co-incidence.

"In the circumstances it would appear that plaintiffs' claim in this regard can in no wise be characterized as frivolous.... " (Memorandum Opinion, J. Bryant, REA v. Watt, USDC CA 83-1243, filed April 26, 1984, Tr. Ex. 132 [parentheses added].)

"The complaint amply alleges a claim of (selective enforcement). Against this claim the respondants have never suggested, either in their brief or in oral argument, any contervailing municipal function which (the alleged regulatory enforcement against plaintiff has actually served). Gomillion v. Lightfoot 364 U.S. at 342 (1960), [Parentheses substituting].


"When the socially harmless actions of a specific individual are guaranteed by the Constitution as legal rights and privileges, and a group of individuals sworn to uphold the Constitution enter into consort, first under color of traditions, customs, and rituals, and later with the introduction of additional collaborators and the concoction of administrative policy, (furthered by a co-ordinated scheme to fabricate and disseminate falsehood with the intent) to color these socially harmless and Constitutionally protected privileges as criminal activity, enforced through force, violence, imprisonment, confiscation, and destruction of property, under the guise of 'governmental interest' ... have the collaborators themselves conspired in a redressable act?" (Opposition to Federal Defendants' (Second) Motion to Dismiss, Memo, p. 14.)

"People of the United States are joined only in their official capacity as citizens of the United States, by virtue of the fact that when a Government seeks to deny one individual of civil rights under color of regulation, then all citizens are deprived of those same rights pursuant to that same regulation." (Complaint, filed November 21, 1984, para. 5).

"Assuming the validity of plaintiffs' allegations, as the Court should at this juncture" (Reuber v. USA, 750 F2d 1080, 1061), the primary question plaintiffs perceive is whether the alleged combination of "mindless bureaucracy and totalitarian police state tactics" (see Complaint, at para. 111), tacitly admitted by Federal Defendants' consistent failure to deny the facts presented in plaintiffs' allegations, constitutes irreparable injury to "individual freedom and personal excellence" (ibid).

"To plaintiffs the question is not whether this regulation causes proximate harm to an individual, rather, they ask how a nation conceived in liberty and dedicated to the proposition that all men are created equal can conceivably endure under a mindless scheme of administrative regulatory abuse cloaked under content neutrality. This is all the clarification plaintiffs ask." (Docket Number 238, Motion For Reconsideration at 6 and 7.)

Plaintiffs filed the Complaint, in part, because of knowledge and belief which indicates that:

"Defendants' unreasonable interference with plaintiffs' rights is not founded on a legitimate restriction of the manner, place or time of expression but rather reveals a wholesale attack on traditional and time-honored rights secured in the Constitution and Bill of Rights and designed to protect against despotic government."

Once again, to clarify for the record any possible misconceptions as to the reasons which impelled this suit, plaintiffs note that, during the U.S.A. v. Thomas series of cases in this District, this Court made certain representations which appeared eminently reasonable and constructive.

"(T)he courts have understood and established that ... that area right in front of the White House is ... a point of high visibility for the media, for the public that passes on the street, for the tourists who come to Washington, for people like yourself with important messages -- and I do not demean your message -- can say it so that it can be heard in a way that messages have never before been hearable and seeable in the history of the world.

"You can stand in front of that White House, and your message can be seen all over the globe within hours, and your right to do that is guaranteed.

"Now, in order to enable you to exercise that right, our court ... worked out a system whereby somebody who ... needed to have an adjudication of that balance between the expression of those rights and the requirement of the public with respect to the safety and peace and order around the White House, ... (could) get to court quickly....

"We provide ... a civilized way to comply with them, and we consider it uncivilized when somebody does not want to take the care, or make available to himself the resources that are available, to comply with the law." (Judge Louis Oberdorfer, Transcript December 21, l983, USA v. Thomas, USDC CR 83-186, page 29; emphasis added.)

Again, on July 19, 1984, Judge Oberdorfer expressed similar sentiments, and instructed Thomas to seek clarification from the proper officials to insure that he did not run afoul of the law. Upon seeking clarification, and being refused, plaintiffs filed this suit pursuant to the Court's suggestion.

There must be absolutely no question that your Honor's words on those occasions struck a chord of understanding. It seemed obvious, and the public record supports, that a controversy existed, and exists, between plaintiffs and the defendants in this matter. Plaintiffs began from the premise that the Constitutional principles upon which this country is founded should insure life, liberty, the pursuit of happiness, and a more perfect union. However, as Thomas has also observed to your Honor, he holds grave reservations about whether the system is presently corrupted beyond any principle other than financial. Repeatedly plaintiffs have tried to conform their behavior to the law concerning demonstrations in the White House area as best they could understand it.

Judge William Bryant (USA v. Thomas, USDC CR 84-358) as long ago as July 5, 1983, perceived and articulated, but without judicial determination, the nature of a pattern of behavior which, plaintiffs allege, continues to the present time:

"Judge: 'Let me ask you this ... hasn't it been one of those things where he (Thomas) gets arrested today for doing "x" conduct, and then he goes back out and he does "x" minus "y" conduct, right? And he gets arrested. And then he goes back out and he does "x" minus "y" minus "z" conduct. In other words, wherever you folks draw the line, he wants to stay on that line?'
"U.S. Attorney: 'He plays games.'
"Judge: 'Well, I don't know who is playing a game, really.'"

Defendants and their agents have consistently refused to provide clarification, and plaintiffs and their associates have continued to suffer arrest and harassment at the hands of defen- dants' agents.

After pondering this situation during August and September, 1984, it appeared that either the system was corrupt beyond all hope, or there were within the system judges who might indeed entertain some commitment to freedom and equality, thereby holding out some hope for justice. Deciding to proceed most optimistically, plaintiffs prayed there was a judge committed to the principle of equal protection of the law and filed this suit on November 21, 1984.

More aptly it may be said that plaintiffs filed this suit because this Court led Thomas to believe there may be a person within the system who is honestly:

"... sensitive... to the fact that if your country suppresses the kind of protest that you are engaged in, we would be jeopardizing the liberty of all of us." (Judge Louis Oberdorfer, Transcript December 21, 1983, USA v. Thomas, USDC CR 83-186, pages 27-29.).

Plaintiffs claim that, bit by bit, piece by piece, defendants have chipped away at stare decisis until they have essentially nickled and dimed the First Amendment to the point of extinction, while reducing Lafayette Park to the equivalent of Red Square, where demonstrations can be carried out only when they are a) under permit issued by the State, or b) so unobtrusive as to not attract attention.

"This raises the interesting legal question of whether a regulation, valid on its face and adapted for generally valid purposes, can be claimed to violate an individual's civil rights if adopted ... to further a conspiracy." (Magistrate's Order August 18, 1986, ftn. 2, p. 3.)

Even more pertinent to this case, plaintiffs believe, is the interesting legal question of whether 36 CFR 50.19(e)(11)(12) was adapted for generally invalid, illegal, or totalitarian purposes with the specific intent of violating individual civil rights under color of regulation.

Plaintiffs believe the federal defendants' representations in these regards are incorrect for at least several reasons.

First, counsel characteristically ignores the allegationthat, beginning in 1981, defendants or their agents have mounted a campaign designed to chill, hamper, disrupt or terminate plaintiffs' communicative activities in the White House area, through the expedient of coloring those communicative activities (without probable cause) as criminal behavior, or by selectively enforcing various regulations against plaintiffs (without furthering any substantial government interest), and stifling plaintiffs' First Amendment exercise.

Second, the record is also clear on the allegations that plaintiffs have personally suffered (see Restatement of Claim, filed July 21, 1986, para. 112(a)-(m)) as a direct and proximate result of actions performed by defendants or their agents. Essentially defendants do not dispute any of plaintiffs' allegations, but simply content themselves with ill-recalled self-serving denials to the effect that they did not conspire.

Third, plaintiffs do not believe this Court should accept counsel's representation that the defendants and/or their agents are somehow being prevented by plaintiffs from performing their jobs. This characterization is absurd, as plaintiffs will readily be able to prove if allowed to mount a challenge to the March 5, 1986 regulation. On the other hand, if this Court allows plaintiffs' claim against 36 CFR 50.19(e)(11)(12) to be severed from this case, further litigation becomes a worthless task, and plaintiffs are denied the possibility of recovering or recouping against any of the injury they have suffered.

Fourth, counsel appears to rely upon representation that there has been no injury because plaintiffs have "apparently complied with the regulation" (see Federal Defendants' Opposition to Plaintiffs' Motions for Temporary Restraining Order, For Default Judgment, and to Compel Production of Documents, filed June 25, 1986, at 2). This would be laughable, if it weren't so serious. Indeed plaintiffs have complied with the regulation; nonetheless, they have suffered in their ability to communicate and continue to be harassed, intimidated, and arrested by defendants' agents. (Plaintiffs will gladly present affidavits, photographs, and other documentation to prove that the harassment, intimidation, and arrests (without probable cause) are taking place on a nearly daily basis against plaintiffs and their associates as of the filing of this document, should the Court so request.)

Prohibiting individuals from reaching their audience, the public, on a public sidewalk is a combination prior/post restraint (Near v. Minnesota, 283 US 697 (1931)), an unnecessary infringement on the pursuit of personal excellence, and an abridgement of the individual's freedom and right to communicate with others through the written, spoken, and/or symbolic word (Martin v. City of Struthers, 319 US 141 (1943); Lovell v. Griffin, 303 US 444 (1938)). Reproachful presence and signs critical of genocidal weapons express an individual opinion in a manner that leaves potential recipients free to accept, investigate, or ignore during the course of their thoroughfare of a public park. Deprivation of First Amendment rights to communicate in a nonviolent, effective, and unobtrusive manner constitutes irreparable injury. (Elrod v. Burns, 427 F2d, 347, 373 (1976); A Quaker Action Group v. Hickel, 42l F2d 1111, 1116 (DCCir 1969).) (See Complaint page 118-119, para. 161, see also Plaintiff's Affidavit In Support Of Motion For Temporary Restraining Order filed June 19, 1986; see also William Thomas' Declaration of Motives and Irreparable Injury, filed July , 1986.)

Respectfully submitted this____day of December, 1986,

William Thomas, Plaintiff Pro Se
1440 N Street, N.W. Apt. 410
Washington, D.C. 20005

Ellen Thomas, Plaintiff Pro Se
Peace Park Antinuclear Vigil
P.O. Box 27217, D.C., 20038
(202) 462-3542

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